Portugal

Process of getting temporary protection in Portugal

The request can be made on-line here or in person (only minors under 18 years old are required to apply in person) in the centers (find centers here).

The documents can be passport (biometric or not), ID card and even without no documentation. There is no need to provide proof that the applicant is in danger.
Process:

1. Request temporary protection;
2. A declaration proving the request for temporary protection will be given and allows access to basic services and integration
3. Borders and Immigration Services (SEF) will contact the applicant to collect the biometric data to issue the residence permit.
4. The applicant will then collect the residence permit at one of the SEF’s centers or receives it in the address provided, depending on the choice made by the applicant.

The special regime for Ukrainians was issued under the Law 67/2003, of 23 of August that implemented Directive 2001/55/CE.
Although the law foresees that on the term of the TP (temporary protection – 1 year, renewed for 6 months twice maximum) the persons should return to their Country, it also foresees that they will be subject to the general immigration law and therefore they will be able to apply to a residence permit.

The same applies to those under the asylum status in case they no longer benefit from it (e.g. the reasons for the status no longer apply), in accordance to article 42 of Law 27/2008, of 30 of June that implemented Directives 2004/83/CE and 2005/85/CE.
A permanent residence permit is only granted after 5 years of temporary residence permits issued under the Law 23/2007 of 4 of July and, among other requirements, applicants are required to evidence knowledge of Portuguese Language. This Law (neither the others above Law 67/2003 and Law 27/2008) does not foresee that temporary protection status or asylum status are equivalent to the temporary residence permits for obtaining permanent residence permits purposes nor that the time spent in Portugal with temporary protection status or asylum status counts towards obtaining permanent residence. Furthermore, the Law 23/2007 establishes that those who have (i) not left Portugal and whose right of residence has expired or (ii) ceased their asylum status can apply to a temporary residence permit without a residence visa. Therefore SEF is entitled to not count that time under special regimes for permanent residence permit purposes.

Those with TP may, while their TP is still valid, apply to normal refugee status (under articles 19 to 21 of Law 67/2003, of 23 of August).

​Is it possible for private Ukrainian entrepreneurs (self-employed) to continue providing their services to Ukrainian/EU/non-EU registered companies as independent contractors (i.e. not as employees) without the need to register their activity/business in the relevant country?

If they render services to a non-Portuguese Company and receive the revenue in its Ukrainian bank account, they are required to register their activity/business for tax purposes at least from the moment they are considered tax residents. Without prejudice of the Double Tax Convention between Portugal and Ukraine, under Portuguese Law, they will be considered tax residents, for tax purposes, in the following cases:

a) To have remained in the territory for more than 183 days, consecutive or with interruptions, in any 12- month period beginning or ending in the year in question;

b) If the remaining period is inferior, to have a house in such conditions that it is clear that the person has the intention to maintain and occupy it as an habitual residence, on any day of the period referred to in the paragraph above.
Considering that they provide IT services, i.e., perform a highly qualified activity, they may also benefit from the non-habitual resident tax regime if all the requirements are met (please find attached a brief information from the Tax authorities regarding this regime).

As far as Social Security is concerned, although self-employed persons may be subject to Portuguese Social Security (please find attached more information), under the Agreement concluded between Portugal and Ukraine, the self-employed may be temporarily excluded from the Portuguese Social Security if they are covered by the Ukrainian Social Security but for that they will need to obtain from the Ukrainian Social Security the form UA/PT 1.

Is the relationship between a self-employed person (acting as an independent contractor) and Ukrainian/EU/non-EU registered legal entity recognised as an employer-employee relationship?

The services agreement shall foresee that the applicable law is the Ukrainian (if the company is Ukrainian) and therefore this issue should be addressed under the Ukrainian Law.

If the company is not Ukrainian, the parties should agree on the applicable law but the chances that the Portuguese Law will apply would be higher because it will be the jurisdiction to which the independent contractor will have a closer connection with.

In case the company is unable to rebut the employment relationship presumption, it shall pay contributions to the Portuguese Social Security, not only the amount due by the employer (23,75% of the salary) but also the amount due by the employee that must be withhold by the employer (11% of the salary).

Furthermore, the company would have to comply with the Portuguese Labor Laws including those related with termination of employment contract, under which (apart from extinction of the work position or redundancy due to economic, structural or market reasons) the employer shall only dismiss an employee in case of fair cause and subject to a disciplinary procedure under which the employee is entitled to be heard on the accusations brought against him/her by the company.

Schengen 90/180 rule

The special regime approved for temporary protection of Ukrainians citizens is silent on this matter. Nevertheless, considering that the procedure can be requested on line including from other countries (except for minors) and the Ukrainians Citizens may also request transportation to Portugal (for more information on transportation please refer to “Leaving Ukraine” on this link) it will not be a problem because they have not reached yet the 90 days. It will also depend on what kind of document was issued to allow them to enter and stay within the Schengen area. In any case it is advisable that they apply for temporary protection status before they reach the 90 days they have been within the Schengen area.